Unlawful Discrimination Based on Pregnancy and Care-giving



Unlawful Discrimination Based on Pregnancy and Care-giving

Introduction

In many countries of the world, motherhood is the most primary reason why women workers are prohibited to work, when experiencing the phases of pregnancy and care-giving. Even in modern societies, we see that motherhood and pregnancy relates to a lay-off from work, and women are assumed to be quitting their professional routines in these stages. Despite various socio-economic changes experienced by the countries, in which both men and women participate in the state activities, women continue to face barriers that prevent them from achieving their developmental goals, and hence delaying the country's progress. One such obstacle is the discrimination of women in education, recruitment, training and wage discrimination due to the physical states of either having child or about to giving birth.

Title VII of the Civil Rights Act of 1964 prohibits discrimination of race, color, religion, nationality or sex. Both sexual harassment and discrimination against pregnant women are considered forms of sex discrimination. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as occurring when “(1) the state or the condition affects the individual's employment in an implied or an explicit manner, (2) compliance or denial of such behavior by an individual is used in making employment decisions that affect the individual, or (3) such behavior has the power of unreasonably intruding with an individual's performance at work or creating a hostile working environment” (Rosstosky, Rigglc, 2002). The first two provisions constitute quid pro quo harassment while the last provision constitutes hostile work environment harassment.

Discussion

In September 2003 the Equal Opportunities Commission (EOC) launched an investigation into discrimination against pregnant women in the workplace. Research carried out as part of the investigation provided some shocking statistics. Of the 441,000 working women who become pregnant each year, nearly half (45 percent) suffer discrimination because they are pregnant. 30,000 women will be sacked, made redundant or leave their jobs each year because of pregnancy discrimination.

The law is clear that discrimination against a female employee on the grounds of her pregnancy is unlawful. But many employers complain of the cost, disruption and administrative burden of dealing with pregnant employees and those on maternity leave. It would seem that these concerns combined with an ignorance of the legal position have combined to leave working mothers at continuing risk of discrimination and employers at risk of costly compensation clams. In the face of these ongoing problems, the Government has continued to champion the cause of working parents and the right to a proper work-life balance. However, recent proposals to extend maternity benefits and flexible working arrangements have already faced criticism from employer organizations (Keeping mum: Pregnant employees and employment rights, 2005).

One question for an employer is whether an employer can be liable for automatically unfair dismissal for pregnancy related reasons where the employer is unaware that the employee is in fact pregnant. This issue has been dealt with very clearly in the case of Ramdoolar ...